DA Connick left a dirty legacy: James Gill

"Addressing the materiality prong of Brady" may sound vaguely risqué to the untutored ear, but nobody tittered at the U.S. Supreme Court last week when an assistant DA from New Orleans explained that was her plan.

If you are not a lawyer, perhaps you don't know who this Brady was and why his prong matters. If you are a lawyer, and used to work for Harry Connick when he was DA, you almost certainly don't. Brady was the Supreme Court case that required prosecutors to turn over "exculpatory" and "material" evidence to the defense.

Connick's office nevertheless railroaded merrily away, often in capital cases, and convictions are still being thrown out years later. After last week's hearing, it seems almost certain that Juan Smith will be the next inmate taken off death row. DA Leon Cannizzaro, in seeking to vindicate his discredited predecessor all the way to the Supreme Court, had nothing to gain but an execution. Smith will spend the rest of his life in prison regardless.

If pursuing the case would have been pointless in a jurisdiction without the death penalty, this one was pointless even here. Cannizzaro has just saddled the taxpayer with a large tab because he evidently feels obliged to defend the lawless stunts of the Connick era. That is a misconception; in theory, at least, a DA's duty is not to rack up the convictions but to ensure that justice is done and due process observed.

Cannizzaro would have spared his assistant Donna Andrieu considerable embarrassment had he recognized the folly of flogging this dead horse. Attorneys must dream of putting on a bravura performance before the Supreme Court. Instead Andrieu had to endure incredulous taunts from the justices, while she tried to argue that Smith's rights had not been violated in 1995 when Connick's boys convicted him of a quintuple murder largely on the testimony of a single eyewitness. When the eyewitness fingered Smith in court, defense counsel could have made mincemeat of him had they been told that, in earlier statements, he had denied seeing anything.

Smith escaped the death penalty in that case, by two votes, but was not so lucky when he stood trial in a separate triple murder the next year. Jurors voted for death after prosecutors cited the earlier conviction.

If there was a way to defend that conviction without appearing foolish, Andrieu did not find it, attempting to justify suppression of the statements while conceding that the current administration wouldn't do it and thereby implicitly conceding that it was wrong.

When that argument attracted nothing but scorn, Andrieu could only resort to Brady's materiality prong, suggesting that Smith would have been convicted even if jurors knew his accuser's word was useless.

Connick's boys evidently did not share that opinion, else they wouldn't have needed play dirty. They presumably believed that Smith was guilty of the five murders, and, for all we know, he may have been. But we are now reminded yet again that sending people to death row by breaking the rules is not only immoral, but counterproductive, since the truth will eventually, and at enormous expense, come to light.

Connick's administration probably led the country in violations of Brady and all his prongs, and it required considerable mental contortions for a bare majority of this court eight months ago to deny John Thompson the $14 million a jury had awarded him for the 14 years he spent on death row for a murder he didn't commit. Justices concluded in the Thompson case that there was no "pattern" of suppressing evidence, but here was Andrieu with further proof that they were detached from reality.

Brady violations will no doubt be with us so long as prosecutors have the discretion to determine what evidence should be turned over. When the rule obliges them to share whatever might undermine their own case, if they err, it will always be on the side of divulging too little. But divulging too much is not possible, because there is nothing that can help the defense to which it is not legally entitled. That's why enlightened prosecutors advocate an open-files policy. Our prosecutors, on the other hand, are still out to defend their outlaw predecessors even when, as Elena Kagan suggested to Andrieu, she would have been better off "confessing error" than getting hung up on a prong.